The Right to Vote

Chief Justice of the Supreme Court John Roberts speaks at the Indiana University School of Law in Indianapolis, Wednesday, April 7, 2010. (AP Photo/Michael Conroy)
National Journal
Norm Ornstein
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Norm Ornstein
Oct. 30, 2013, 3:55 p.m.

It is be­com­ing in­creas­ingly ob­vi­ous that the Su­preme Court de­cision in Shelby County v. Hold­er, which evis­cer­ated the Vot­ing Rights Act, is lead­ing to a new era of voter sup­pres­sion that par­al­lels the pre-1960s era — this time af­fect­ing not just Afric­an-Amer­ic­ans but also His­pan­ic-Amer­ic­ans, wo­men, and stu­dents, among oth­ers.

The reas­on­ing em­ployed by Chief Justice John Roberts in Shelby County — that Sec­tion 5 of the act was such a spec­tac­u­lar suc­cess that it is no longer ne­ces­sary — was the equi­val­ent of tak­ing down speed cam­er­as and traffic lights and re­mov­ing speed lim­its from a dan­ger­ous in­ter­sec­tion be­cause they had com­bined to re­duce ac­ci­dents and traffic deaths.

In North Car­o­lina, a post-Shelby County law not only in­cludes one of the most re­strict­ive and pun­it­ive vote-ID laws any­where but also re­stricts early vot­ing, elim­in­ates same-day vot­ing re­gis­tra­tion, ends pre-re­gis­tra­tion for 16- and 17-year-olds, and bans many pro­vi­sion­al bal­lots. Whatever flimsy voter-fraud ex­cuse ex­ists for re­quir­ing voter ID dis­ap­pears when it comes to these oth­er obstacles to vot­ing.

In Texas, the law could re­quire voters to travel as much as 250 miles to ob­tain an ac­cept­able voter ID — and it al­lows a con­cealed-weapon per­mit, but not a stu­dent ID, as proof of iden­tity for vot­ing. Moreover, the law and the reg­u­la­tions to im­ple­ment it, we are now learn­ing, will cre­ate huge im­ped­i­ments for wo­men who have mar­ried or di­vorced and have voter IDs and driver’s li­censes that re­flect maid­en or mar­ried names that do not ex­actly match. It raises sim­il­ar prob­lems for Mex­ic­an-Amer­ic­ans who use com­bin­a­tions of moth­ers’ and fath­ers’ names.

In a re­cent elec­tion on con­sti­tu­tion­al is­sues, a fe­male Texas Dis­trict Court judge, Sandra Watts, who has voted for 49 years in the state, was chal­lenged in the same court­house where she presides; to over­come the chal­lenge, she will have to jump through hoops and pos­sibly pay for a copy of her mar­riage li­cense, an ef­fect­ive poll tax on wo­men.

The Justice De­part­ment is chal­len­ging both laws, but through a much more cum­ber­some and rarely suc­cess­ful pro­vi­sion of the Vot­ing Rights Act that is still in force. It can­not pre­vent these laws and oth­ers im­ple­men­ted by state and loc­al jur­is­dic­tions, many of which will take ef­fect be­low the radar and will not be chal­lenged be­cause of the ex­pense and dif­fi­culty of lit­ig­a­tion.

Voter sup­pres­sion is noth­ing new in Amer­ica, as the pre-civil-rights era un­der­scores. But it is pro­foundly un-Amer­ic­an. The Texas law, pro­moted ag­gress­ively by state At­tor­ney Gen­er­al Greg Ab­bott, the GOP choice for gov­ernor in next year’s elec­tion, es­tab­lishes the kinds of obstacles and im­ped­i­ments to vot­ing that are more akin to Vladi­mir Putin’s Rus­sia than to the United States. Maybe we should change the state’s name to Putinexas.

Look­ing at the demo­graph­ics in Texas, the Re­pub­lic­an au­thors of the law de­cided that sup­press­ing votes was easi­er than chan­ging either policies or ap­proaches to ap­peal to the emer­ging ele­ments of the state’s elect­or­ate. In Vir­gin­ia, with polls show­ing that Demo­crat­ic gubernat­ori­al can­did­ate Terry McAul­iffe’s ro­bust lead over Re­pub­lic­an op­pon­ent Ken Cuc­cinelli is driv­en by a huge gender gap, it is not sur­pris­ing that Re­pub­lic­ans in Texas are try­ing to sup­press the votes of wo­men as much as those of His­pan­ic-Amer­ic­ans.

A new Vot­ing Rights Act would help to ameli­or­ate some of these prob­lems, es­pe­cially if it ap­plied na­tion­wide (many of the re­strict­ive laws are oc­cur­ring in non-South­ern states such as In­di­ana and Kan­sas). I have pre­vi­ously sug­ges­ted a host of areas that could be in­cluded in a VRA 2.0 to make vot­ing easi­er and more con­veni­ent. But des­pite the en­dorse­ment of a new VRA by in­flu­en­tial Re­pub­lic­ans such as Rep. Jim Sensen­bren­ner of Wis­con­sin, the odds of en­act­ing new vot­ing-rights le­gis­la­tion in today’s thor­oughly dys­func­tion­al and hy­per­par­tis­an Con­gress are slim.

The ef­fort should be ac­cel­er­ated. We need a mod­ern­ized voter-re­gis­tra­tion sys­tem, week­end elec­tions, and a host of oth­er prac­tices to make vot­ing easi­er. But we also need to fo­cus on an even more au­da­cious and broad­er ef­fort — a con­sti­tu­tion­al amend­ment pro­tect­ing the right to vote.

Many, if not most, Amer­ic­ans are un­aware that the Con­sti­tu­tion con­tains no ex­pli­cit right to vote. To be sure, such a right is im­pli­cit in the 15th, 19th, and 26th amend­ments that deal with vot­ing dis­crim­in­a­tion based on race, gender, and age. But the lack of an ex­pli­cit right opens the door to the courts’ rat­i­fy­ing the sweep­ing kinds of voter-re­stric­tions and voter-sup­pres­sion tac­tics that are be­com­ing de­press­ingly com­mon.

An ex­pli­cit con­sti­tu­tion­al right to vote would give trac­tion to in­di­vidu­al Amer­ic­ans who are fa­cing these tac­tics, and to leg­al cases chal­len­ging re­strict­ive laws. The courts have up to now said that the con­cern about voter fraud — largely man­u­fac­tured and ex­ag­ger­ated — provides an open­ing for severe re­stric­tions on vot­ing by many groups of Amer­ic­ans. That bal­ance would have to shift in the face of an ex­pli­cit right to vote. Fi­nally, a ma­jor na­tion­al de­bate on this is­sue would alert and edu­cate voters to the twin real­it­ies: There is no right to vote in the Con­sti­tu­tion, and many polit­ic­al act­ors are try­ing to take away what should be that right from many mil­lions of Amer­ic­ans.

Reps. Mark Po­can, D-Wis., and Keith El­lis­on, D-Minn., have in­tro­duced in Con­gress a con­sti­tu­tion­al amend­ment that would guar­an­tee the right to vote. It has garnered little at­ten­tion and no mo­mentum. Now is the time to change that dy­nam­ic be­fore more states de­cide to be Putinesque with our demo­cracy.

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